More on Smith's Sentence

The New York Times has a very good piece looking at the Smith sentence of six months in the context of others punished, noting the absence of any real examination of the role of superiors, going up the chain of command. Some speculate that some of these issues might be addressed in the other dog handler's trial - Sgt. Santos Cardona - which is scheduled to begin May 22. At the very least his lawyers intend to call witnesses including Secretary of Defense Donald Rumsfeld.

As Jean Aylward put it to the Associated Press: ''It's hard to make of what this sentence means but the bottom line is there must be clear rules and they must be communicated to lower ranking officers. Our soldiers shouldn't be forced to sort out what methods of interrogation are permissible by watching who gets convicted of what. The rules need to be clear in advance, and senior commanders and civilian leaders who intentionally muddy those rules must be held accountable.'' Amen.

Six Months for Sgt. Smith

The AP reports that Sgt. Smith has been sentenced to six months.

Abu Ghraib dog handler gets 6 months in jail

Associated Press - David Dishneau

FORT MEADE, Md. — An Army dog handler was sentenced Wednesday to six months behind bars for using his snarling canine to torment prisoners at Abu Ghraib.

The military jury handed down the sentence a day after convicting Sgt. Michael J. Smith, 24. He could have gotten 8.5 years in prison.

Smith was sentenced on five charges, including maltreatment of prisoners, conspiring with another dog handler in a contest to try to frighten detainees into soiling themselves, and directing his dog to lick peanut butter off other soldiers' bodies.

Smith was also demoted to private and will receive a bad conduct discharge after his release from prison. He will forfeit $2,250 in pay.

Prosecutors said he let his unmuzzled black Belgian shepherd bark and lunge at cowering Iraqis for his own amusement. The defense argued that Smith believed he was following orders to soften up prisoners for interrogation.

Smith appeared unrepentant when he addressed the jury Tuesday, shortly after he was convicted.

"Soldiers are not supposed to be soft and cuddly," he said.

©Star Tribune. All rights reserved.

Verdict Details

Here's a breakdown on the military jury's findings with respect to the various counts.  Interestingly, Smith was found not guilty on all counts related to the incidents involving detainees Mohammed Bollendia and the "General," Kamel Miza'l Nayil, but he was found guilty on counts involving the detainee Asraf Abdullah Al-Juhayshi (" A.Q."). 

 

It's hard to divine what might explain these different outcomes, though the testimony during the trial suggested the incident involving Al-Juhayshi was during an an interrogation whereas the incidents involving Bollendia and Nayil might be characterized as having occurred during detention operations, and hence less clearly prohibited.  This of course brings up the unsettling lack of clarity between military intelligence (MI) and military police (MP) operations, with neither area seemingly knowing the rules of the other, yet working together.  When were "detention" operations in the service of "interrogations?"  No one seemed to know and this ambiguity appears to have sown many of the problems and been exploited to abusive ends.  Maj. Gen.Taguba criticized this very structure of blending MP and MI responsibilities, which Maj. Gen. Miller had recommended for use at Abu Ghraib and thereupon implemented, in both his 15-6 investigation and before Congress.  However, as has been well-documented but did not come out at the trial, the interrogations of Al-Juhayshi were closely monitored by folks all the way up to the Pentagon.  In addition civilian contractors appeared to wield significant control over the interrogation of Al-Juhayshi during the time of the dog incident, yet their role has not been properly addressed in a court of law either.

 

From: US Army Military District of Washington Public Affairs Office

Court Martial Results for Sgt. Michael J. Smith

CHARGE I:  VIOLATION OF THE UCMJ, ARTICLE 93  (Maltreatment)  GUILTY

  Maximum penalties:  Dishonorable Discharge; Forfeiture of all Pay and Allowances, and Confinement for one year for each specification.

SPECIFICATION 1:  In that Sergeant Michael J. Smith, U.S. Army, at or near Baghdad Central Correctional Facility, Abu Ghraib, Iraq, on divers occasions between on or about 15 November 2003 and on or about 15 January 2004, did maltreat multiple detainees, persons subject to his orders, by directing, encouraging, or permitting his unmuzzled military working dog to bark and growl at detainees in order to unlawfully harass and threaten the detainees and in order to make the detainees urinate or defecate on themselves. Not Guilty

SPECIFICATION 2:  In that Sergeant Michael J. Smith, U.S. Army, at or near Baghdad Central Correctional Facility, Abu Ghraib, Iraq, on or about 12 December 2003, did maltreat Mohammed Bollendia, a person subject to his orders, by harassing and threatening Mr. Bollendia with his unmuzzled barking and growling military working dog . Not Guilty

SPECIFICATION 3:  In that Sergeant Michael J. Smith, U.S. Army, at or near Baghdad Central Correctional Facility, Abu Ghraib, Iraq, between or on about 29 December 2003 and on or about 3 January 2004, did maltreat Mr. Ashraf Abdullah Al-Juhayshi, a person subject to his orders, by harassing and threatening Mr. Al-Juhayshi with his unmuzzled barking and growling military working dog. Guilty

SPECIFICATION 4: In that Sergeant Michael J. Smith, U.S. Army, at or near Baghdad Central Correctional Facility, Abu Ghraib, Iraq, between on or about 15 December 2003 and on or about 15 January 2004, did maltreat Mr. Kamel Miza'1 Nayil, a person subject to his orders, by harassing and threatening Mr. Nayil with his unmuzzled barking and growling military working dog. Not Guilty

SPECIFICATION 5:  In that Sergeant Michael J. Smith, U.S. Army, at or near Baghdad Central Correctional Facility, Abu Ghraib, Iraq, on or about 13 January 2004, did maltreat two juvenile detainees, persons subject to his orders, by harassing and threatening them with his unmuzzled barking and growling military working dog. Guilty   

CHARGE II:  VIOLATION OF THE UCMJ, ARTICLE 81  (Conspiracy of Maltreatment) GUILTY 

Maximum penalties:  Dishonorable Discharge; Forfeiture of all Pay and Allowances, and Confinement for one year for each specification.

SPECIFICATION 1:  In that Sergeant Michael J. Smith, U.S. Army, did, at or near Baghdad Central Correctional Facility, Abu Ghraib, Iraq, between on or about 15 November 2003 and on or about 15 January 2004, conspire with Sergeant Santos Cardona, to commit an offense under the Uniform Code of Military Justice, to wit: maltreatment of subordinate detainees, and in order to effect the object of the conspiracy the said Sergeant Smith directed, encouraged, or permitted his unmuzzled military working dog to bark and growl at detainees in order to make the detainees urinate or defecate on themselves. Guilty

SPECIFICATION 2:  In that Sergeant Michael J. Smith, U.S. Army, did, at or near Baghdad Central Correctional Facility, Abu Ghraib, Iraq, between on or about 15 November 2003 and on or about 15 January 2004, conspire with Staff Sergeant Ivan L. Frederick, Corporal Charles Graner, and others, to commit an offense under the Uniform Code of Military Justice, to wit: maltreatment of subordinate detainees, and in order to effect the object of the conspiracy the said Sergeant Smith directed, encouraged, or permitted his unmuzzled military working dog to bark and growl at detainees in order to unlawfully harass and threaten the detainees. Not Guilty

CHARGE III:  VIOLATION OF THE UCMJ, ARTICLE 92  (Dereliction of Duty) Guilty

Maximum penalties:  Bad Conduct Discharge; Forfeiture of all Pay and Allowances, and Confinement for six months

THE SPECIFICATION:  In that Sergeant Michael J. Smith, U.S. Army,who knew or should have known of his duties at or near Baghdad Central Correctional Facility, Abu Ghraib, Iraq, on divers occasions between on or about 15 November 2003 and on or about 15 January 2004, was derelict in the performance of those duties in that he willfully failed to properly handle his military working dog and willfully failed to utilize his military working dog solely for authorized purposes, as it was his duty to do, in that:  GUILTY

1.           Used his military working dog in such a manner that only served his purpose to frighten detainees.

2.           Allowed his unmuzzled dog to get within an unsafe distance of the detainees.

3.           Failed to prevent, and then failed to properly report, dog bites and other serious incidents.

4.     Used his military working dog in such a manner that interfered with interrogation operations.  Charge was dismissed during a motion's hearing. 

5.      Used his military working dog in such a manner which bodily injury was a foreseeable and reasonable consequence to fellow soldiers.

6.       Did not perform assigned patrol duties for the specified length of time or in the specified  locations.

CHARGE IV:  VIOLATION OF THE UCMJ, ARTICLE 128   (Aggravated Assault)  GUILTY

Maximum penalties:  Dishonorable Discharge; Forfeiture of all Pay and Allowances, and Confinement for three years for each specification.

SPECIFICATION 1:  In that Sergeant Michael J. Smith, U.S. Army, did, at or near Baghdad Central Correctional Facility, Abu Ghraib, Iraq, on or about 12 December 2003, commit an assault upon Mr. Mohammed Bollendia by unlawfully threatening him with a means or force likely to produce death or grievous bodily harm, to wit: an unmuzzled military working dog. Not Guilty

SPECIFICATION 2:  In that Sergeant Michael J. Smith, U.S. Army, at or near Baghdad Central Correctional Facility, Abu Ghraib, Iraq, between on or about 15 December 2003 and on or about 15 January 2004, commit an assault upon Mr. Kamel Miza'1 Nayil by unlawfully threatening him with a means or force likely to produce death or grievous bodily harm, to wit: an unmuzzled military working dog. Not Guilty

SPECIFICATION 3:  In that Sergeant Michael J. Smith, U.S. Army, at or near Baghdad Central Correctional Facility, Abu Ghraib, Iraq, between on or about 29 December 2003 and on or about 3 January 2004, commit an assault upon Mr. Ashraf Abdullah Al-Juhayshi by unlawfully threatening him with a means or force likely to produce death or grievous bodily harm, to wit: an unmuzzled military working dog. Not Guilty as charged, guilty of the  lesser included offense of assault

SPECIFICATION 4:  In that Sergeant Michael J. Smith, U.S. Army, at or near Baghdad Central Correctional Facility, Abu Ghraib, Iraq, on or about 13 January 2004, commit an assault upon two juvenile detainees by unlawfully threatening them with a means or force likely to produce death or grievous bodily harm, to wit: an unmuzzled working dog. Not Guilty

CHARGE V:  Violation of the UCMJ, Article 134   (Indecent Act with Another) GUILTY 

Maximum penalties: Dishonorable Discharge; Forfeiture of all Pay and Allowances, and Confinement for five years.

THE SPECIFICATION:  In that Sergeant Michael J. Smith, U.S. Army, at or near Baghdad Central Correctional Facility, Abu Ghraib, Iraq, on or about 15 November 2003 and on or about 15 January 2004, wrongfully commit an indecent act with Sergeant Jay Burr and Specialist Jennifer Scala, by having his military working dog lick peanut butter off of genitals and Specialist Scala's breasts as Sergeant Burr videotaped these acts.  Guilty

 

Note:  If sentencing includes confinement of more than 6 months; or confinement of 6 months; or less and a dishonorable; or bad conduct discharge, an automatic reduction of rank to E-1 and a Forfeiture of all Pay and Allowances is imposed. (Pursuant to Article 58b-Sentences)

Guilty

Abu Ghraib dog handler SSgt Michael Smith was found guilty today by a military jury on six of the twelve counts he was charged with, including two counts of maltreatment, one count of conspiracy to make detainees urinate and defecate on themselves, dereliction of duty, assault and an indecent act.  The panel members took about eighteen hours to deliberate.  Sentencing is scheduled for this afternoon.  More details to follow. 

No Verdict Today

Well the panel members continued to deliberate today.  No verdict yet.  But I would highly recommend for peoples' reading the recent piece by Eric Schmitt and Carolyn Marshall of The New York Times on Task Force 6-26, a special operations unit that engaged in significant abuses before and after the Abu Ghraib scandal broke.  The article describes a base in Baghdad called Camp Nama that rivaled Tier 1A of Abu Ghraib for its atrocities and dehumanization of prisoners.  It's these sorts of stories that have not generated nearly enough attention and not remotely enough accountability.

Closing Arguments

By Jean Aylward

In Friday's closing arguments, the Prosecution skillfully wove together itscase theory with the evidence presented. That was expected. Butit was the combination of the manner in which the argument was delivered, decidedlymatter-of-fact and lacking flourish, and the relative simplicity of its organizationthat suddenly strengthened the Prosecution's case to a level it had not achievedthrough witness testimony alone.

The Prosecution made a strong argument that S.Sgt. Michael Smith failed toexercise sound judgment and remove himself from some of the abusive situations. Onedog handler, MA1 William Kimbro, testified he walked away from incidents thatwere far from the scenarios for which his dog had trained. Whether or notthere was a lack of clarity in policies concerning the use of dogs in interrogations,the Prosecution stressed that Smith at least knew the rules and limits for useof his dog, which included rules like maintaining a safe distance between thedog and any individuals.

The theme repeated throughout the Prosecution's closing was that this is nota case of lack of instruction or guidance, but one in which a soldier willfullyused his dog as a weapon and as a toy for entertainment. The Prosecutionclosed with the argument that Smith stopped being a disciplined soldier whenhe arrived at Abu Ghraib in October 2003 and started using his dog as a toy forfun, asking panel members not to allow Smith to cloak his maltreatment in duty,love of country, and claims of "I was just doing what I was told."

Smith's attorneys also delivered a solid closing argument, repeating the themeof lack of clear guidance for the dog handlers regarding use of their dogs inintelligence interrogations. The Defense highlighted communication andcoordination failures between Military Intelligence (MI) and Military Police(MP) at Abu Ghraib and how those communication failures resulted in a lack ofclear direction to the dog handlers, who were being used in both MI and MP capacities. Militaryinvestigations document many of these failures. Read some of the investigations here.

It is obviously difficult to predict how long any jury will take to reachits verdict, but after closing arguments it certainly appears that the panelmembers will need time to work through the findings. More to come afterthe verdict.

The Defense Rests

By Jean Aylward

Thursday's court proceedings began with the Defense's entry into the recordof two letters of stipulated testimony from S.Sgt Allan Wayne Smith, former headof the Quick Reaction Force at Abu Ghraib, and Navy dog handler MA2 Ashley Pankratz.The only live testimony of the day was from the former warden of Abu Ghraib,Maj. David DiNenna. DiNenna was questioned heavily by the Government's TrialCounsel, but he primarily stressed Smith's compliance with Gen. Sanchez's humane treatment orders and guidance. (Of course the "humane treatment" orders accompany an interrogation policy that provides for the use of dogs in interrogations). DiNenna painted Smith as a model soldier. Trial Counsel was unable to shake DiNenna's testimony. This allowed the Defense to rest its case on a strong note after presenting only six witnesses.

Recall that at Smith's pretrial hearing in July, DiNenna testified that he understood Maj. Gen. Geoffrey Miller "was sent over by the Secretary of Defense to take their interrogation techniques they used at Guantanamo Bay and incorporate them into Iraq." This aspect of how and whether interrogation techniques migrated from Guantanamo to Abu Ghraib was not really examined during the court martial.

An interesting question now is whether, for the majority of the charges pending against him that involve the use of an unmuzzled dog in interrogations and/or threatening detainees, Smith will be found to have possessed the requisite intent to commit the crimes alleged. To be found guilty of most crimes, the accused must be shown not only to have committed the prohibited act (actus reas), but also to have possessed the intent to violate the law (mens rea). The military judge will advise the panel members on these elements in Friday's jury instruction session prior to commencement of their deliberations.

Also, if Smith did not have reason to know the order was illegal, then he may be protected to some degree under the defense of superior orders. The Manual for Courts-Martial provides: "It is a defense to any offense that the accused was acting pursuant to orders unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful." So, if the "no knowledge" prerequisite is met, if the Defense adequately shows that Smith was ordered to commit the offending acts and establishes who gave the orders, and convinces panel members that a reasonable person would not have known the orders to be unlawful, then Smith may escape punishment for his actions. Soldiers are required to disobey unlawful commands, but there will be an issue in this case as to whether or not the orders were obviously illegal. The Government has of course argued that Smith should have known the orders to use an unmuzzled dog in interrogations were unlawful and not authorized.

The superior orders defense also goes to the issue of command responsibility; that others at levels above Smith were responsible for issuing the policies that led to the abuses and/or failed to provide clear and proper guidance to their subordinates. The success of the superior orders defense in cases like this would only serve to further emphasize the need for the military to hold responsible those individuals who gave the orders, set the policies, and/or failed to clarify the policies that ultimately led to the abuses. Someone should be held accountable.

Closing arguments and jury instructions are scheduled for Friday morning. More reporting to follow…

The Prosecution Rests. The Defense Calls Pappas to the Stand…

By Jean Aylward

The Government's case against dog handler Sgt. Michel Smith could have, arguablyshould have, been its strongest at this point. Its best witnesses hadbeen presented to lay out the case against Smith, and the accused had not yethad an opportunity to present his side of the case...to tell his story. Yet,as the Government rested, it had not painted the picture of a rogue army soldierwho made decisions to violate rules or orders. Instead, the charges pendingagainst Smith of Cruelty and Maltreatment, Conspiracy to Commit Maltreatment,Failing To Obey an Order or Regulation, and Assault appear to be missing themental element or mens rea necessary to convict him of these crimes. Inaddition the Governmenthad not effectively demonstrated that any clearguidance was in place at Abu Ghraib regarding the use of dogs, muzzled or unmuzzled,in interrogations.

Early in its presentation of the case, the Defense called Col.Thomas Pappas to the stand. Testifying under a grant of immunity, Col.Pappas said he mistakenly believed he had the authority to authorize the useof military working dogs (MWDs) in interrogations at Abu Ghraib in December 2003. Pappasqualified, however, that he authorized use of MWDs on a single occasion onlyin mid-December, in relation to one particular request in which a plan was presentedfor their use. Some confusion exists over just how many detainee interrogationswere covered by that single request. It appears the request may havepertained to the interrogations of three detainees who were brought to Abu Ghraibin connection with Saddam Hussein's capture. Pappas said that requestwas made by military intelligence interrogator SSgt Christopher Astor.

SSgt Astor had previously told the court that interrogators asked him forpermission to use the dogs because one of the three above-mentioned "high-value" detaineesappeared to be resistant to other standard interrogation techniques that theywere using on him. Both Astor and Pappas agree that Astor sought and receivedpermission from Pappas to use dogs in the interrogations. Astor testifiedthat Pappas made clear to him that the ultimate authority must come from a higherlevel and that Pappas would seek that permission (from Lt.Gen. Ricardo S. Sanchez), yet Pappas testified that he never actually gotthe authority from Sanchez and mistakenly thought he was authorized to make thedecision himself. In addition, Astor testified that Pappas' same day approvalorally specified the "left and right" limitations were that the dogs must remainunder the control of the dog handlers at all times and the dogs had to be muzzledwhen used in the interrogation booth. Pappas recalls his instructionswere to keep the dog muzzled at all times. Pappas said he would not haveeven requested that dogs be unmuzzled for use in interrogations because thenit becomes something other than a control mechanism and gets into areas thatcould violate the Geneva Convention.

The Command Joint Task Force Interrogation policy for Iraq applicable in December2003 was hardly a model of clarity. Dated October12, 2003 and signed by Lt. Gen. Sanchez, the memo states in the "Safeguards" enclosure, "Shouldmilitary working dogs be present during interrogations, they will be muzzledand under control of a handler at all times to ensure safety." Septemberversions of the interrogation policy had listed the use of military working dogsunder the category of "approaches." See here and here. TheOctober policy required that for interrogation approaches not listed under "approaches," arequest must be made to Sanchez along with a description, proposed safeguardsand legal review. The language relating to the use of dogs is puzzlingin that it anticipates the use of dogs, without laying it out under the specificinterrogation approaches. So it is certainly unclear to me whether Sanchez'memo requires his sign-off for the use of dogs in interrogations.

One big theme of the day was that there was some degree of disconnect betweenthe Military Intelligence (MI) and Military Police (MP) sides of the house atAbu Ghraib. On each occasion when Pappas was asked whether MI policiesand procedures or training concerning interrogations and use of MWDs had beencommunicated to the MPs, Pappas indicated they had not because the MPs were notunder his command. Smith was in the MP battalion at Abu Ghraib. TheGovernment asked Pappas, "Would you agree that Abu Ghraib did not do the bestjob of integrating MPs and MI," to which Pappas responded, "Yes, I would agreewith that."

The most revealing statements of the day were Pappas' own:

"Clearly, it would have been helpful to have them (military police personnel)read into the same type of training as interrogators were."

"If I had to list my biggest failure, it was in not setting appropriate controls. That'swhat I needed to do at my leadership level."

"In hindsight, clearly we probably needed to establish some definitive rulesand put out clear guidance to everyone concerned." Pappas was punishedfor his 14 Dec 2003 mistake in authorizing the use of the dogs in one, or asmany as three, interrogations at Abu Ghraib. His letterof reprimand reportedly states that Pappas failed to ensure that subordinateswere"adequately informed of, trained upon, and supervised in the applicationof interrogation procedures"and that he"failed to obtain the approvalof superior commanders" before allowing the "presence of military working dogsduring interrogation of a detainee. Pappas was subject to the military'sArticle 15 process, a type of non-judicial punishment, and was fined $8000, andwas relieved of his command, effectively ending his military career.

So will any officer, Pappas included, ever be criminally punished for theabuses at Abu Ghraib? Or will the lack of clarity and authorizations ofabusive interrogations continue to be pinned solely on enlisted soldiers? TheL.A. Time reported in January that Army criminal investigators had recommendedcriminal charges be filed against Lt.Col. Steven Jordan, who headed the JointInterrogation and Debriefing Center at Abu Ghraib , but no action on thatrecommendation is believed to have been taken yet. Pappas was granted immunityto testify in "any court-martial resulting from the investigation into allegedoffenses committed by Lt. Col. Steven L. Jordan." That would certainlybe a start toward accountability. But it's clear that other officers bearsome responsibility too.

No "Warm and Fuzzy" Feelings

The prosecution has introduced 14 witnesses through two days of the court martial of dog handler Sgt. Michael Smith but if you walked into the courtroom I couldn't blame you if you thought many of these persons were defense witnesses.  Person after person has testified that Abu Ghraib was dangerous, overcrowded, filled with tension, and most importantly - there were little or no standards, rules or regulations.

 

Private Ivan Fredrick, who is serving 7 1/2 years for his role in the abuse of detainees at Abu Ghraib testified for the prosecution yesterday.  Fredrick was the Non-Commissioned Officer in Charge at the now infamous "hardsite" where many of the infamous photos of abuses were shot.  A complete selection of photos of the dogs there may be found at Salon's just introduced terrific site, "Abu Ghraib Files," which houses all the Criminal Investigation file digital images.

 

Fredrick testified that there were no SOPs (Standard Operating Procedures) regarding the use of dogs with detainees.  Instead, Fredrick said, Smith followed verbal orders from his higher-ups.  He related that Col. Thomas Pappas had authorized the use of dogs inn interrogations and that civilian contract interrogator "Big Steve" (Steven Stephanowicz) often told the dogs handlers to bring their dogs in to interrogations.  Big Steve has been mentioned by a number of witnesses as wielding quite a bit of power at the prison.  Although Taguba recommended punishment of Stephanowicz way back in February of 2004 for his role in authorizing abuses, to my knowledge no criminal charges have ever been brought against him.

 

One of Big Steve's contract interrogator colleagues (both men worked for CACI, under a DOD contract), Stephen Pescatore testified that he saw a dog handler with a black dog stop  at every cell in Tier 1A in the hardsite and have the dog bark (Sgt. Smith's dog was black).  Pescatore said this use of the dog and the fear it elicited in detainees actually hindred the efficacy of the interrogations.  But he also said that in mid-December, when Saddam Hussein was captured, Col. Pappas gave his approval for harsher interrogation techniques.  At least three CACI employees and four army soldiers were briefed on this new authority.  It was unclear from the testimony what techniques in addition to dogs in interrogation were then authorized.  But these men became part of some sort of "special projects team" at Abu Ghraib.  Pescatore related that Pappas said they could request authorization but should assume it was approved - silence was consent.

 

What was frighteningly clear from the testimony yesterday and today of at least those who had been at Abu Ghraib between October and January of 2003 was how acceptable the depraved and abusive became.  Soldiers who have never been punished and are unlikely to be, testified to the normal and commonplace scenes of detainees kept naked, or chained to the bars of their cells, or subjecting them to "sleep management" and "sleep deprivation." Instructions from militry intelligence to the guards to take Qurans away, deny detainees food, and make them do "PT" - physical training were everyday  occurences.  How was a guard to know whether he should follow the order or not?   It was not ultimately through any written guidance because almost none existed, but depended rather on whether you got or didn't get, as Sgt. Hydrue Joyner put it during his testimony, "a warm and fuzzy."  That's not an adequate source of guidance for anyone  - particularly young and inexperienced soldiers feeling beseiged.

 

So far, I only have more questions as this court martial goes on.  How could be there be so little clarity?  Who had ultimate authority and responsibility for what transpired at Abu Ghraib?  Who are these CACI guys?  What's the story with Big Steve?  What harsher techniques did Col. Pappas authorize in December, 2003?  What did Sgt. Smith think when he received orders to bring his  dogs into  interrogations?  I confess that I have no "warm and fuzzy" feelings as I ponder these questions.

Photos v. Words

Before the panel members of Sgt. Michael Smith's court martial had been selected, before any opening statements were made, I could see the strategies of both the prosecution and the defense on full display.  During a 39A hearing, both sides provided the exhibits they would  introduce as evidence.  The prosecution put forward almost exclusively  photographs from Abu Ghraib  - many of them the same or similar to ones the world has seen.  The defense, on the other hand, offered almost only memorandums and other written documents that address the use of dogs in detention and interrogation.  In essence, it  comes down to two competing messages: "The images speak for themselves" or "These photos are explained by orders Sgt. Smith received."

 

The prosecution opened by laying out the details of what Smith is accused of - including maltreatment of detainees, conspiring  to maltreat detainees, dereliction of duty, aggravated assault, and an indecent act.  Smith could face up to 24 1/2 years if convicted on all counts.

 

Prosecutor Maj. Matthew Miller compared the situation of Sgt. Smith and other guards at Abu Ghraib to "foxes in the henhouse" who have been "given the keys to the locks from the inside."  Miller laid out how Sgt. Smith tried to make detainees, including juveniles, urinate and defecate on themselves out of fear of his dog, to make other detainees do the "doggie dance" out of fear, but Miller also noted that there would be evidence of a leadership failure on the part of Col. Thomas Pappas and that he deviated from Lt. Gen. Ricardo S. Sanchez' established interrogation policy.  This latter point may be the government's own spin of course.  At  the very least one of the big questions for everyone is what was the policy from on high, and was Pappas and then his subordinates deviating, or just following what was in fact policy, which for a long time did appear to include the use of dogs in interrogation.  After describing the vivid details of some of the abuses, the prosecution stated its key point, "that there is no soldier who would honestly and reasonably believe that such conduct was lawful or authorized."  Maj. Miller concluded with "This is what happens when a guard or a cop turns bad."

 

The defense sought to portray of course a decidedly different story - describing how the young Smith (he is now 24) spent one of his first days at Abu Ghraib - Thanksgiving - amid a riot, shooting and finally death.  The defense described much of the chaotic scenes at Abu Ghraib all the while stressing that Smith was the youngest and lowest ranking of the dog handlers assigned to Abu Ghraib.  The defense also tried to minimize what Smith had done, saying that all he had the dog do was bark - "that was his job; that's what dogs do."  But the main theme was that Smith was following orders from then Sergeant, now Private, Ivan Fredrick, or contract civilian interrogator Stephen Stephanowicz or Col. Pappas.  "He was young - he was doing what he thought his superiors wanted . . . put yourself in his shoes" and most importantly, "don't get distracted by the misconduct of others."

 

It's hard to say who had the more compelling opening statement.  Were Sgt. Smith's actions authorized?  They were not lawful and we do know that at least one other dog handler, Master at Arms 1st Class William Kimbro, refused to participate in the harassment of detainees with his dog.  But is it reasonable to think he would have resisted the orders if they came from Fredrick?  Maj. Dinenna?  Col. Pappas?  There's a lot more to learn -  in particular what was Sgt. Smith ordered to do and what were the rules and policies in place on the treatment of detainees and especially with respect to dogs.  But with one day down I already feel a pit in my stomach - sad and queasy over what occurred.

Sgt. Smith's Own Words

With the court martial to begin today, the Washington Post has another great article on Abu Ghraib dog handler Sgt. Michael Smith - revealing new information about one of the detainees,  Ashraf Abdullah Ahsy, who was interrogated with the aid of dogs.  Ashy, it turns out, was a high value detainee, who was interrogated some 43 times and whose interrogation developments were communicated to higher-ups at Abu Ghraib and at the Pentagon.

 

It may not be an exaggeration to say that the Taguba investigation revealed more about the  role of the chain of command and the scope of abuses than all of the other investigations that have followed - many of which were classified to the point of revealing little or were whitewashed such that they offer virtually no insights.  Some of the most interesting information may be found in the Taguba annexes - many of which are available here on the Center for Public Integrity website.

 

It's worth reading the interview of Sgt. Michael Smith from February of 2004 before his court martial begins.  In addition you can read the interviews of two other dog handlers who were at Abu Ghraib - Sgt. Santos Cardona and Master in Arms 1st Class William Kimbro.  Reading them I found most disturbing the fact that none of the men had been schooled in the Geneva Conventions.

 

Needless to say, the Army Regulation on military working dogs, which Smith was aware of, makes no mention of using dogs for interrogation and only refers to using them in relation to prisoners to prevent escapes and escort them in transit.  As discussed in Friday's post, interrogation policy at Guantanamo Bay and at Abu Ghraib from at least September 2003 to possibly as late as May 2004 allowed for the use of dogs in interrogation. And as today's piece in the Post makes clear, those much higher than Smith were aware of these abusive practices and in many instances authorized them.

Dogs, Detainees and Justice (?)

On Monday, March 13, the court-martial of Military Working Dog Handler Army Sgt. Michael Smith begins at Ft. Meade in Maryland.  Smith has been charged with cruelty and maltreatment and dereliction of duty for his role in the use of dogs during interrogation of detainees at Abu Ghraib prison in Iraq.  

 

Human Rights First will be monitoring this important court martial and blogging from the proceedings.

 

Smith and another dog handler Sgt. Santos A. Cardona, whose court-martial for similar conduct has been scheduled for May 22, have long maintained that the use of dogs in interrogations was authorized by their superiors.  

 

This is the claim that has been made by lower level soldiers in other prosecutions, both at Abu Ghraib and in the cases of abuses elsewhere in Iraq and in Afghanistan.   Such arguments may explain in part both the lack of prosecutions as a whole and the many lenient sentences.  But the "following orders" defense may have greater resonance and receive more in depth exploration at this court-martial than in previous cases because the military intelligence commander at Abu Ghraib, Col. Thomas Pappas, is expected to testify in exchange for a grant of immunity.   Pappas has told investigators that Maj. Gen. Geoffrey Miller , "said they used military working dogs, and that they were effective in setting the atmosphere for which, you know, you could get information."  T he Joint Chiefs of Staff, with the encouragement of then U ndersecretary of Defense for Intelligence Stephen Cambone, had sent sent Miller to Iraq from Guantanamo Bay in August 2003.  Col. Pappas also said that the idea of using dogs "came from Guantanamo Bay and my discussions during the General Miller visit."  Similarly, the head military police officer at Abu Ghraib in 2003, Maj. David DiNenna, testified at Sgt. Smith's preliminary hearing that he understood Miller had been sent by the Secretary of Defense to " Gitmo-ize" – "to take their interrogation techniques they used at Guantanamo Bay and incorporate them into Iraq." 

 

Pentagon officials and Maj. Gen. Miller have maintained that Miller "recommended dogs as beneficial for detainee custody and control" but not for interrogations.  But this distinction may have been of little consequence as Miller's fundamental recommendation to U.S. Army commanders in Iraq was to "integrate" and "synchronize" detention and interrogation functions.   Miller's own official report on detention and interrogation operations in Iraq included the following recommendations: "the detention operations function must act as an enabler for interrogation." (Miller report, 2); "Dedicate and train a detention guard force . . . that sets the conditions for the successful interrogation and exploitation of internees/detainees"; and "Detention operations must be structured to ensure detention environment focuses the internee's confidence and attention on their interrogators."   Dogs were in fact authorized and used at Guantanamo as part of interrogations. 

 

In any case, it is clear that Lt. Gen. Ricardo S. Sanchez then signed off on the use of dogs in interrogations in Iraq in at least three different memos, the first written immediately after Maj. Gen. Miller had visited Iraq to assess detention and interrogation operations there.   Read the memos here, here, and here.

 

Gen. Miller has invoked his right not to incriminate himself in the dog handler cases and will not testify.  Responding to this decision, Senators on the Armed Services committee have asked the Army to put a hold on Miller's retirement, pending their review of his testimony before Congress in May of 2004 and the completion of the dog handler cases to ensure that Miller did not perjure himself.

 

Sgt. Smith told investigators that he was asked by military intelligence personnel to use his dog, a Belgian shepherd named Marco, to induce fears in detainees, bringing the dog within half a foot of detainees.  In some instances the dogs were known to have bitten detainees.   Other military personnel have alleged that Smith and Cardona had a competition to see how many detainees they could cause to urinate or defecate out of fear of the dogs.  One of the key questions of the court martial, and one of the most troubling, is simply whether Sgt. Smith's actions fell within his orders or was he acting outside the scope of his duties.  It's a frightening question to have to be asking.

 

It is good to see that prosecutions are going forward.  A court of law presents an important opportunity to both provide justice and accountability, and to ferret out the truth.   It will be fascinating and we hope illuminating to hear what Col. Pappas says under oath.  But Maj. Gen. Miller's silence on the matter may sound just as loudly.